Legal & Courts  April 29, 2016

Colorado Supreme Court opinions on Longmont, Fort Collins fracking bans to come Monday

To ban fracking or not to ban fracking? It’s a question the Colorado Supreme Court could answer for the state’s municipalities on Monday.

Included on the list of court opinions to be released Monday morning are the cases of Longmont’s permanent ban on fracking and Fort Collins’ five-year moratorium on the practice used to extract oil and natural gas.

District court judges in Boulder and Larimer counties had struck down both voter-approved restrictions, causing the cities to appeal. The Colorado Court of Appeals last year asked the Supreme Court to hear the cases because of the potential for more such cases around the state. The state’s high court heard arguments from the cities and the opposing Colorado Oil and Gas Association in December.

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Fracking, formally known as hydraulic fracturing, involves pumping water mixed with sand and chemicals into a drilled hole to retrieve oil and natural gas from shale deep underground. The practice is one that has caused plenty of debate as urban sprawl on Colorado’s Front Range and drilling facilities collide, with detractors of the practice worried fracking could cause environmental and health impacts.

If the Supreme Court upholds the district court rulings, any other attempts by cities or counties in Colorado to individually ban or place moratoria on fracking would likely be wiped out.

At issue in the Longmont and Fort Collins cases is the same central issue: whether home-rule cities in Colorado are pre-empted from prohibiting a practice that is regulated by the state’s Colorado Oil and Gas Conservation Commission, as the district courts ruled.

But there are several questions specific to both cases – many of which overlap – that the Supreme Court’s opinions Monday are expected to address.

In Longmont, those include, among others, whether the district court employed the proper test for pre-emption and whether it erred in refusing to consider local interests in the regulation of fracking.

In Fort Collins, key issues include whether the district court was correct in ruling that the city’s moratorium on fracking is the same as a ban and whether it used the correct test for determining whether a moratorium materially impedes or destroys the state’s interest in oil and gas development.

The cities argued in December that while the COGCC regulations cover fracking, they do not expressly authorize it. But COGA officials argued that such a matter should be handled at the state level because allowing a patchwork of bans and local regulations would be crippling to the industry and go against the state’s pre-emption laws.

Voters also have approved bans and moratoria in Boulder, Broomfield and Lafayette in recent years. Lafayette’s vote was overturned by a district court. The case regarding Broomfield’s moratorium is being held in abeyance until a decision is rendered on the Fort Collins case. And Boulder’s ban hasn’t yet been challenged by COGA.

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